Op-Ed: Separation of Church and State, Disaster Edition

(Friday, January 25th, 2013 08:28 AM)

[By Avi Schick]

In coming days, the Senate is expected to approve $50.5 billion in federal aid for the victims of Hurricane Sandy. This is in addition to the $9.7 billion in aid approved earlier this month. The Federal Emergency Management Agency and Department of Housing and Urban Development will determine how most of the aid is distributed. Their to-do list should include a clear message that houses of worship and other religious institutions will be fully eligible for assistance.

In New York state alone, hundreds of houses of worship were damaged by Sandy. More than 200 Catholic parishes were affected, including Our Lady of Solace in Coney Island, which was completely devastated. The New York State Council of Churches reports that over a hundred of its member churches sustained damage, while the UJA-Federation reports that dozens of synagogues were affected. Among them was Agudath Israel of Bayswater in the Rockaways, which had recently completed a top-to-bottom rebuilding and is now destroyed.

Hurricane Sandy was nothing if not ecumenical. Yet with the FEMA application deadline less than a week away, there is fear that the distribution of relief aid will be less inclusive. Without clear guidance from the Obama administration, it is likely that many religious institutions will be discouraged from applying for assistance while others are likely to have their applications denied.

After the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, both FEMA and HUD refused to consider applications from damaged churches. It took an act of Congress to get the federal funds flowing, and ultimately $6 million was distributed to affected churches. While the language of the Oklahoma City statute was limited to that incident, its logic extends to Sandy and other natural disasters.

After an earthquake struck Seattle in 2002, the Justice Department’s Office of Legal Counsel stepped in to continue what the Oklahoma City amendment began. After FEMA denied the Seattle Hebrew Academy’s application for assistance, the Justice Department issued an opinion deeming the distribution of disaster relief to the religiously affiliated school a permissible extension of the government’s police powers.

That seems like common sense. After all, when evacuation orders were issued for Hurricane Sandy, houses of worship were not excluded. When emergency workers helped fortify buildings, houses of worship were not excluded. When first responders trained their hoses on burning roofs and used their pumps to empty flooded basements, houses of worship were not excluded. So when FEMA is going up and down the block distributing aid to repair the roofs of damaged buildings, why should houses of worship be excluded?

As Cardinal Timothy Dolan, Archbishop of New York, told me recently, “The wind and waves did not discriminate when it came to destroying property. The houses of worship are the very bedrock of the neighborhoods now trying to rebuild. To not offer natural disaster assistance grants to rebuild a house of worship just doesn’t make any sense.”

One would have hoped that the Seattle opinion and common sense would be sufficient, but FEMA has apparently reverted to a position that provides less than full participation for religious institutions. Its reasons for doing so are not entirely clear but seem to include a mix of constitutional, statutory and regulatory concerns.

Many of these concerns should have been put to rest by the Oklahoma City experience and Congress’s approval of aid to religious organizations there. Nobody suggests that government should entirely rebuild sanctuaries or pay for the printing of prayer books. But if roofs are being repaired and other structural damage is being remediated, the religious nature of what might occur below shouldn’t matter. That is consistent with the reasoning of a 2003 Justice Department opinion that permitted the federal government to provide assistance to help restore the landmarked Old North Church in Boston.

In essence, federal disaster relief is a form of social insurance meant to help repair a tear in our social fabric. Houses of worship are an important part of that social fabric and are often where people turn for comfort and support after a disaster. After Hurricane Sandy, they are equally in need of repair and should be equally eligible for assistance.

FEMA implicitly acknowledges that its aid is a form of insurance. That’s why individual applicants are not means-tested for eligibility. The displaced occupants of modest bungalows in the Rockaways and beach-front homes in Belle Harbor were both entitled to emergency assistance. There should also be no religious test.

Last month the White House organized a wonderful ceremony in celebration of Hanukkah. It concluded with President Obama and the first lady leading their guests in singing the 13th-century Hanukkah hymn Maoz Tzur. The second verse begins with a request to rebuild our houses of prayer. Let’s hope the Obama administration sings that same tune when communicating with the agencies that will distribute the relief aid allocated by Congress.

Mr. Schick is a lawyer in private practice. He previously served in New York state government as a deputy attorney general and as president of the Empire State Development Corporation.

NOTE: The views expressed here are those of the authors and do not necessarily represent or reflect the views of YWN.